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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35402
STATE OF IDAHO,                                                                                   )
                                                                                                  )   2011 Opinion No. 66
Plaintiff-Respondent,                                                                             )
                                                                                                  )   Filed: November 14, 2011
v.                                                                                                )
                                                                                                  )   Stephen W. Kenyon, Clerk
PETER L. TOYNE,                                                                                   )
)
Defendant-Appellant.                                                                              )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County.  Hon. Michael E. Wetherell, District Judge.
Judgment of conviction for felony driving under the influence, affirmed, sentence
vacated, and case remanded for resentencing.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
LANSING, Judge
Peter L. Toyne was convicted of felony driving under the influence  (DUI), with a
sentence enhancement under Idaho Code § 19-2514 for being a persistent violator of the law.
The district court imposed a unified sentence of fifteen years, with seven years fixed.   Toyne
appeals, contending that the district court erred at trial in admitting documentary evidence of
Toyne’s previous DUI convictions over his objection.   He also contends that the district court
abused its sentencing discretion by misinterpreting Idaho Code § 19-2514 to require a five-year
fixed term of imprisonment for a persistent violator and to prohibit a suspended sentence.   We
affirm the conviction, but vacate the sentence and remand for resentencing.
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I.
ANALYSIS
A.                                                                                                      If a Judgment of Prior Conviction is Admissible Under I.R.E. 902(4), It Need Not
Also Comply with the Provisions of Idaho Code § 9-312 to be Admissible
Toyne was charged with DUI for conduct on June 21, 2007, elevated to a felony because
he had previously been convicted of felony DUI within the past fifteen years.   I.C. §§ 18-8004,
18-8005(7) (2006).   At trial, the State offered documents to prove that Toyne had three prior
felony DUI convictions in other states.   Toyne objected, contending that the documents were
inadmissible because they were not properly authenticated under the provisions of Idaho Code
§ 9-312.   The district court overruled the objection, holding that the documents were properly
certified  and  authenticated  under  the  provisions  of  the  Idaho  Rules  of  Evidence  and  that
compliance with the statute was therefore unnecessary.   On appeal, Toyne claims error, asserting
that compliance with the statute is a prerequisite to admissibility.
The statute on which Toyne relies, Section 9-312, authorizes authentication of judicial
records in the following manner:
A judicial record of this state, or of the United States, may be proved by
the production of the original, or by a copy thereof, certified by the clerk or other
person having the legal custody thereof.   That of another state or territory may be
proved by the attestation of the clerk and the seal of the court annexed, if there be
a clerk and seal, together with a certificate of the chief judge or presiding
magistrate, that the attestation is in due form.
(emphasis added).   Idaho Rule of Evidence 902(4), however, provides that the following records
are self-authenticating:
A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public
office,  including  data  compilations  in  any  form,  certified  as  correct  by  the
custodian or other person authorized to make the certification, by certificate
complying with paragraph (1), (2), or (3) of this rule or complying with any law
of the United States or of this State, or rule prescribed by the Idaho Supreme
Court.
(emphasis added).   Recently, in State v. Howard, 150 Idaho 471, 248 P.3d 722 (2011), the Idaho
Supreme Court considered whether compliance with the strictures of Section 9-312 is necessary
for admission of records that comply with the certification standards of I.R.E. 902(4).  The Court
there rejected the same argument that is now presented by Toyne:
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If I.C. § 9-312 was written to be the exclusive means of admitting and
proving  judicial  records,  I.C.                                                                       §                                                                                 9-312  would  conflict  with  the  I.R.E.’s
authentication standards under 902(4) and, thus, I.C. § 9-312 would have no force
or effect pursuant to I.R.E. 1102.   However, I.C. § 9-312 may be read as merely
providing an alternate way of admitting and proving judicial records, which
would not conflict with the I.R.E.   As stated in I.R.E. 902(4), a copy of a public
record  can  be  self-authenticated  if  it  is  certified  in  accordance  with  either
I.R.E. 902(1), I.R.E. 902(2), I.R.E. 902(3) or “any law of the United States or of
this State, or rule prescribed by the Idaho Supreme Court.”  As a law of this State,
I.C. § 9-312 provides one such means of certifying a public record.   We hold that
I.C. § 9-312 is not a separate, additional requirement for admitting and proving
judicial records, as this would conflict with the I.R.E.; however, I.C. § 9-312 is
one  method  by which  a  public  record  may be  certified  in  accordance  with
I.R.E. 902(4).
Id. at 477-81, 248 P.3d at 728-29.   In light of Howard, the district court’s evidentiary ruling here
was correct and Toyne’s claim of error is without merit.
B.                                                                                                      Idaho’s Persistent Violator Sentence Enhancement Statute, Idaho Code § 19-2514,
Does  Not  Preclude  Suspension  of  a  Sentence  and  Mandates  Only  a  Five-year
Minimum Unified Sentence
In addition to being found guilty of felony DUI, Toyne was found by the jury to be a
persistent violator subject to a sentence enhancement under Idaho Code  §  19-2514, which
provides:
Any person convicted for the third time of the commission of a felony,
whether the previous convictions were had within the state of Idaho or were had
outside the state of Idaho, shall be considered a persistent violator of law, and on
such third conviction shall be sentenced to a term in the custody of the state board
of correction which term shall be for not less than five (5) years and said term
may extend to life.
Toyne contends that the district court abused its sentencing discretion by misinterpreting that
statute as requiring a minimum of a five-year fixed sentence for a persistent violator and to
prohibit suspension of the sentence.
At Toyne’s sentencing hearing, the district court responded to Toyne’s request that the
court retain jurisdiction pursuant to Idaho Code § 19-2601(4) as follows:
Mr. Toyne, in your case there is a minimum mandatory sentence of no less
than five years that the Court must impose.   In addition, I understand [defense
counsel’s] argument with regard to the rider program.   But I believe that our
legislature has expressed a policy with regard to minimum mandatory sentences.
That those sentences are not to be what in their opinion is reduced by the use of
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riders or alternate sentencing.   They believe that minimum mandatories are to be
served in the State Penitentiary.
And even if [defense counsel] is right with regard to there being a policy
to allow a rider even with a minimum mandatory sentence, in this case the Court
believes it would make no sense because you would go through a program for six
months and you would come back here and I would still have to sentence you to a
minimum mandatory five years in the Idaho State Penitentiary.
There  is  no  way  of  getting  around  a  minimum  mandatory  sentence
mandated by the Idaho legislature.
Thus, the district court reasoned that even if Idaho’s persistent violator statute allowed the court
to retain jurisdiction, because it did not allow the court to suspend the sentence at the end of the
retained jurisdiction period, such a disposition would be pointless.   The district court apparently
also understood the statute to require that the enhanced sentence include at least a five-year fixed
term of imprisonment.
The State concedes error in the district court’s interpretation of Section 19-2514 in view
of our holding in State v. Harrington, 133 Idaho 563, 990 P.2d 144 (Ct. App. 1999).   We there
determined that this statute requires only a unified sentence of at least five years, not a fixed term
of five years, and that the sentence can be suspended.   In Harrington, we rested our decision
largely upon the principle of lenity, which provides that where ambiguity exists, criminal statutes
should be interpreted narrowly and in a manner that is lenient toward defendants.  Id. at 566, 990
P.2d at 147.   Because imprecision in the language of some sentencing statutes, and historical
changes in legislatively prescribed sentencing schemes and options, continue to cause some
confusion for the bench and bar, we will here expand somewhat upon the explanation of our
holding in Harrington.
Idaho’s Unified Sentence Act, Idaho Code § 19-2513, directs that for a felony, the court
is to impose a unified sentence that is composed of a specified fixed (determinate) term of
incarceration followed by an indeterminate term.    During the indeterminate portion of the
sentence, the individual may be released on parole.   The statute directs that if the offense or an
enhancement carries a mandatory minimum penalty, “the court shall specify a minimum period
of confinement consistent with such statute.”
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For most types of crimes, the legislature has also authorized, in Idaho Code § 19-2601, an
array of sentencing alternatives.1   For most felonies, an Idaho trial court may:                      (a) suspend the
execution of a sentence to the custody of the state board of correction at the time of judgment
and place the defendant on probation, I.C. § 19-2601(2) and (5); (b) retain jurisdiction for 365
days, during which the court may suspend the execution of the sentence and place the defendant
on probation, I.C.  §  19-2601(4) and  (5);  (c) withhold judgment and place the defendant on
probation, I.C. § 19-2601(3) and (5); or (d) commute the sentence and confine the defendant in
the county jail, I.C. § 19-2601(1).
The Idaho Legislature unquestionably may, by appropriate statutory language, prescribe
mandatory minimum fixed sentences for crimes; that authority is plainly expressed in a 1978
amendment to Article V, Section  13 of the Idaho Constitution, which now states:                       “[T]he
legislature can provide mandatory minimum sentences for any crimes, and any sentence imposed
shall be not less than the mandatory minimum sentence so provided.   Any mandatory minimum
sentence so  imposed  shall  not  be reduced.”    This  constitutional  authority also  allows  the
legislature to preclude suspension of the sentence for particular crimes or preclude use of other
alternative sentencing options that might otherwise be available to the sentencing court.   State v.
Pena-Reyes, 131 Idaho 656, 656-57, 962 P.2d 1040, 1040-41 (1998); State v. Puetz, 129 Idaho
842, 843-44, 934 P.2d 15, 16-17 (1997).
When the legislature has chosen to prescribe a minimum sentence that must be imposed
upon  conviction  of  a  crime  or  upon  a  finding  that  a  particular  sentence  enhancement  is
applicable, the first question that arises is whether the statute requires the imposition of a fixed
term of confinement or whether a unified term of confinement of the specified length is all that is
required.   A second and related question is whether the legislature has directed that the Idaho
Code § 19-2601 alternative sentencing options, or any of them, are unavailable for the particular
crime or sentence enhancement.   That is, has the legislature mandated that the sentence may not
be suspended, that jurisdiction cannot be retained, that judgment cannot be withheld or that the
sentence cannot be commuted?     All of these inquiries are matters of legislative intent, gleaned
first and foremost from the language of the particular statute.
1                                                                                                      The first sentence of the statute prohibits these alternative sentencing options for the
crimes of treason and murder.
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When the legislature has intended to require that a prescribed minimum sentence be a
fixed  term,  without  opportunity  for  probation  or  other  sentencing  alternatives,  it  has
demonstrated its ability to make that intent entirely clear.   For example, Idaho Code § 37-2732B
specifies that offenses of trafficking in certain controlled substances carry “mandatory minimum
fixed term(s) of imprisonment,” (emphasis added) and “[n]otwithstanding any other provision of
law, with respect to any person who is found to have violated the provisions of this section,
adjudication of guilt or the imposition or execution of sentence shall not be suspended, deferred,
or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum
fixed  term  of  imprisonment  prescribed  in  this  section.  Further,  the  court  shall  not  retain
jurisdiction.”  I.C. § 37-2732B(8).
When, however, the statute provides only that a particular crime is punishable by a term
of custody or imprisonment of not less than a specified number of years, it has generally been
held that the statute does not require that this term be fixed.   Thus, in State v. Anderson, ___
Idaho ___, ___ P.3d ___, ___ (Ct. App. Aug. 26, 2011), we held that a minimum ten-year fixed
term is not required by Idaho Code § 18-4004 which provides, “Every person guilty of murder of
the  second  degree  is  punishable  by  imprisonment  not  less  than  ten                               (10)  years  and  the
imprisonment may extend to life.”    We adhered to our prior holdings that there is no mandatory
fixed or determinate period of confinement for second degree murder, but the unified sentence,
encompassing both the fixed and indeterminate terms, must be at least ten years.   Anderson, ___
Idaho at ___, ___ P.3d at ___.   See also State v. Hansen, 120 Idaho 286, 290 n.1, 815 P.2d 484,
488 n.1 (Ct. App. 1991); State v. Paul, 118 Idaho 717, 720, 800 P.2d 113, 116 (Ct. App. 1990).
We similarly interpreted Idaho Code § 18-6503, which states that robbery “is punishable by
imprisonment in the state prison not less than five (5) years, and the imprisonment may be
extended to life.”   In State v. Haggard, 116 Idaho 276, 277, 775 P.2d 168, 169 (Ct. App. 1989),
we held that “although the statute says that the minimum sentence for robbery is five years, the
minimum period of confinement under the sentence, pursuant to the Unified Sentencing Act,
Idaho Code § 19-2513, may be for a term less than five years.”  We reached the same conclusion
with respect to Idaho Code § 18-6605, which provides that the infamous crime against nature “is
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punishable by imprisonment in the state prison not less than five years.”  See State v. Hayes, 121
Idaho 232, 235, 824 P.2d 163, 166 (Ct. App. 1992).2
Our decision in Harrington, holding that the persistent violator sentencing enhancement
statute  at  issue  here,  Idaho  Code                                                               §  19-2514,  does  not  require  a  minimum  fixed  term  of
imprisonment, is consistent with the foregoing authorities.   Section 19-2514 does not state that
the five-year minimum sentence must be fixed or that the sentence may not be suspended.   In
Harrington, we held that a 1986 amendment to Idaho Code § 19-2513 did not implicitly amend
Idaho Code § 19-2514 to remove the court’s power to suspend a sentence.   Harrington, 133
Idaho at 567, 990 P.2d at 148.  We now hold that it likewise did not implicitly amend Section 19-
2514 to mandate a minimum fixed sentence.   The statute requires only a unified sentence of at
least five years and such sentence may, in the court’s discretion, be suspended.
Toyne has shown that the district court here misperceived the scope of its sentencing
discretion and may have imposed a harsher sentence than it would have fashioned had the court
properly understood the scope of its sentencing discretion.   When this occurs, the proper remedy
is to vacate the sentence and remand for resentencing.   Anderson, ___ Idaho at ___, ___ P.3d at
___.  We do so here.
II.
CONCLUSION
The judgment of conviction is affirmed.    The sentence is vacated and this case is
remanded to the district court for resentencing.
Chief Judge GRATTON and Judge GUTIERREZ CONCUR.
2                                                                                                    Statutory interpretation is made problematic when legislative intent is stated clearly in
one portion of the statute but imprecise language elsewhere in the statute creates room for
argument as to its meaning.   See, e.g., State v. Patterson, 148 Idaho 166, 170, 219 P.3d 813, 817
(Ct. App. 2009) and State v. Ayala, 129 Idaho 911, 918-19, 935 P.2d 174, 181-82 (Ct. App.
1996), both interpreting Idaho Code § 37-2739B to require a five-year fixed minimum sentence
without suspension of the sentence despite nonmandatory language in some portions of the
statute.
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